Page:The English Reports v1 1900.pdf/1151

agreement in the said defeazance; and likewise that he might assign the said mortgage.

To this bill the appellant put in a first and second answer; and by both of them positively swore, that the £500 subscription receipt pledged or deposited with him by the respondent, was No. 194, and not No. 195; that the inserting No. 195 in the indenture of defeazance, was by mistake; that the said subscription receipt No. 194 was, on the 22d of September 1720, by inadvertency, instead of another receipt in the same subscription, sold to Sir Harcourt Masters for £595 and no more; that the appellant had, till the 30th of April 1722, kept by him a receipt in the same subscription, No. 338, for £500, which he was ready to have delivered to the respondent, in case he had before that time paid him the of remainder the £1100 and interest; but that the respondent failing in payment thereof, the appellant had, on the said 30th of April 1722, sold and disposed of the said subscription receipt No. 338, for £95 12s. 9d. and no more; that one receipt was as good as another, where both were for the same sum, and in the same subscription; and therefore insisted, that the appellant ought not to allow the respondent any more than the sum of £95 12s. 9d. in respect of the subscription receipt so pledged or deposited.

The appellant also brought a cross bill against the respondent; praying that he might be obliged to accept of the said sum of £95 12s. 9d. in satisfaction for the subscription receipt, so pledged or deposited with him.

[565] To this bill the respondent put in his answer, and thereby expressly swore, that the £500 subscription receipt, pledged or deposited with the appellant, was No. 195, and not No. 194; that there was no mistake in the description thereof inserted in the defeazance; and that the appellant had acutally sold the said subscription receipt No. 195, for the sum of £2700, and therefore insisted, that the appellant was and ought to be answerable to him for that sum.

The appellant never thought fit to proceed further in his cross cause; but the original cause being at issue, and divers witnesses examined on both sides, the same was heard on the 22d of February 1723, when the Court directed, that a trial at law should be had between the respondent and the appellant, upon a feigned action, to be brought in the office of pleas of that court, wherein the issue was to be, whether the second subscription receipt for £500 in the South-Sea Company, deposited by the respondent with the appellant, was numbered 195 or 194? which trial was to be at the first sittings in Middlesex, in Trinity term then next, and proper directions were given for the trial of the said issue; and after such trial, the cause was to stand in the paper, to be heard on the equity reserved.

A trial at law was accordingly had, and upon a full defence made, and examination of witnesses on both sides, which lasted a considerable time, the jury brought in their verdict for the respondent, viz. that the subscription receipt by him deposited with the appellant was No. 195, and not No. 194.

On the 4th of July 1724, the cause was heard upon the equity reserved, when it was decreed, that the appellant should account with the respondent for the sum of £2700 for which the said subscription receipt No. 195 was sold, and interest for the same, from the 9th of August 1720, the time when it was sold; as likewise for the sum of £100 paid by the respondent to the appellant, on the 21st of April 1722, and the interest thereof; and that the mortgage deed, bond, and defeazance, given by the respondent to the appellant, and by order brought into court, should be forthwith delivered up to the respondent, to be cancelled and for the better taking of the said account, it was referred to the Deputy Remembrancer, to settle what was due for the interest of the said £2700 and £100, who, in taking the account, was to deduct 1100 and the interest thereof, to the time of the sale of the said subscription receipt, out of the said £2700 and £100 and interest; and the Deputy was also to tax the respondent his costs, both at law and in equity.

On the 25th of January 1724, the Deputy Remembrancer made his report, and thereby certified to be due to the respondent from the appellant, the sum of £2062 13s. 8½d. after the several deductions and allowances by the decree directed to be made and on the 8th of February following, the report was duly confirmed; and it was ordered, that the appellant should pay to the [566] respondent the said